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Tuesday, February 23, 2010

Why can't I see the Will?


Over the years, I've been asked by dozens of family members and other interested parties how they can see someone's Will. In each case, it wasn't a general interest question, but a request that I help them obtain a copy of a certain individual's document. Usually, but not always, it was the Will of someone who had passed away. I find it interesting that a lot of people believe they have a right to see a Will just because they want to see it, which of course is not the case.

A Will is a private document. Lawyers advise their clients to keep their original Wills in the safe deposit box at the bank, in a locked safe at home, or in the lawyer's vault. Part of the reason is that they don't want to lose the original Will, but just as importantly, they don't want it to be read by anyone. An individual can choose to show someone his or her Will if they want to, but nobody, including the executor named in the Will, has an enforceable right to see it if the owner doesn't want to show it.

After the owner of the Will (the testator) has passed away, things change, but the Will is still private. If the Will is held at a bank, lawyer's office or trust company, it won't be released to anyone except the executor named in the Will itself. Nor will it be shown to anyone else. There could be an exception where the testator left written instructions to give it to someone else, but that is extremely rare.

The most common reason given for wanting to see someone's Will is that the individual asking the question believes that he or she is a beneficiary of the Will. They want to confirm this, and to find out what they will inherit.

In Alberta, when a Will is probated, the executor is required to provide every beneficiary with a notice by registered mail of what they are going to inherit. If they are inheriting a portion of the residue of the estate, they will receive a copy of the whole Will along with copies of all documents (including inventory of assets and debts) filed with the court. If they are receiving a specific gift, such as a piece of jewelry or a stated amount of cash, they will not be given a copy of the Will, nor are they entitle to receive one. The notices are usually sent out by the lawyer's office.

Not all estates go through probate, so this process does not cover everyone. However, the same rules apply. If you are a residuary beneficiary of an estate, you are entitled to see the entire Will. Otherwise, you're not.

A problem sometimes arises when an executor is overly secretive about the estate. This could signify a problem, but not always. A family member who is positive that he or she was named as a beneficiary in the deceased's Will may be suspicious or upset if the executor refuses to say whether the person is or is not still in the Will. In a case like this, if you want to see the Will, you should consult an estate litigation lawyer to represent you in a formal request for the information you want. Sometimes a court order is required.

There are other reasons for wanting to see what's in a Will. For example, if you are acting for an incapacitated adult under an Enduring Power of Attorney or Personal Directive, you will likely be allowed to see the incapacitated adult's Will while he or she is alive. This is because you will have to make decisions for the incapacitated adult that might be affected by what is in the Will.

17 comments:

  1. My grandfather passed away 9 months ago and my uncles where made executor of his will. My mom, their sister passed away 8 years ago and there's no mention of my mom named in the will. The will has never been shared by my uncles, they have been very hush hush about my grandfather estate.
    Should I be entitled to a copy of the will on my mothers behalf???

    ReplyDelete
    Replies
    1. Hi. If your mother was not a beneficiary of the will, then no, you are not entitled to a copy of the will. It sounds as if your grandfather may have made a new will after your mom died. However, let's not assume that. It's quite possible that the will says to divide the estate among all of your grandfather's children. Your uncles may be interpreting that as meaning your mother doesn't get a share because she has passed away. She doesn't have to be named specifically. Most likely the will says that if one of the kids has passed away then her kids (i.e. you) should get her share. It would be worthwhile to ask a lawyer to write a formal letter to the uncles. It doesn't have to be confrontational. It just needs to ask for written verification of whether the will includes your mother or her children. Unfortunately, a lot of executors operate on the idea that if you don't tell a potential beneficiary anything, they'll never find out. I'm not saying your uncles are doing that, but they might be, and it's worth it to get legal help to find out. If money is an issue, try going to a law school that has a student legal services.

      Lynne

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  2. My father passed away 5 years ago .I have asked to see the will on numerous occasions as well as right after his death and was denied by my step brother.When the will was read I was informed 2 hours before knowing that I could not make it there as I live 4 hours away.I have a right to see it even after all this time how do I do that?

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  3. My Aunt is the executor of my grandfathers will. I know for a fact that my grandfather wanted me to have he's 1999 Dodge truck. My aunt will not let anyone see the will. There was a new will written before he died with changes. I don't know which will she is using. The second will was written in a different city, different lawyer. Is there any way to obtain a copy to see if my Aunt is even following the will.

    ReplyDelete
    Replies
    1. As a person who is (as far as you know) only one item from the estate, you are not entitled to see the whole will. However, other people who are the beneficiaries of the residue of the estate (that is, the bulk of the assets) ARE entitled to not just see it but have a copy of it.

      You can try doing a search at the courthouse nearest where your grandfather lived to see whether your aunt has applied for probate of the will. If she has done so, the will is a public document and anyone can get a copy of it and the supporting probate documents by searching your grandfather's name. Check the "interesting links" section of this blog because I have included links to probate searches in most parts of Canada. If your grandfather has just passed away in the last month or two, it might be too early for a search because it takes time to put together the probate documents. Also remember that not all wills go to probate so the search is not fail-safe.

      A residuary beneficiary who has asked the executor for a copy of the will and has been denied should ask for it in writing, stating the fact that as a residuary beneficiary he or she is entitled to see the document. If the executor still won't hand it over for any reason, the beneficiary should hire a lawyer to make the request. If it is necessary for the beneficiary to force the executor to court to get a copy, the executor will probably have to pay legal costs out of her own pocket for being so darn stubborn for no reason.

      I realize that you may not be sure who the residuary beneficiaries are. If your grandfather has other children besides the executor, they are logical beneficiaries to make the request for the will.

      Lynne

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  4. Does an Insurance Company have the right to request a copy of my will to justify paying out my late husbands Life insurance Policy on our Car Loan?

    ReplyDelete
    Replies
    1. I can't see how your will could possibly be relevant. Are you sure they don't want to see HIS will?

      Lynne

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  5. A few years ago my mom and dad bought a house with my sister and moved in together. Six months ago my dad was diagnosed with dementia and not long after that my mom passed away from cancer. While my mother was going through chemo she changed their will making my sister the executor and gave her power of attorney. This was done without consulting any of the other family members including my younger brother who was the original executor of the original will. Now that my sisters has Power of attorney over my father she has access to all his pension income. She has since put him in a veterans home and is paying for his stay there. To this day I have no idea what is in the will, what are my rights?

    ReplyDelete
    Replies
    1. Actually, you really don't have any rights. Your parents are entitled to choose who they want to represent them and they don't have to consult with anyone.

      As for your sister having access to all the pension income, well, that's the point. She is supposed to have access so that she can handle their finances.

      Unless you discover that your sister is stealing or otherwise mis-handling the estate, there isn't anything the law can do for you. Hopefully your sister will voluntarily offer information if you ask.

      Lynne

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  6. My father was one of two sons named as beneficiaries in my Grandmothers will. The will contained a clause stating that if she were predeceased by either of them their share of the estate would be passed to the sons children. This occurred when my father died. One month after his death his brother(the other named beneficiary) was named as the sole beneficiary in a will unknown to our family. His son is the named executor in the new will and now in light of our grandmothers passing is refusing to allow me to see the will to resolve the issues.

    ReplyDelete
  7. First, thank you in advance for any advice you can give...my mother recently passed after a sudden short battle with an aggressive cancer. My sister has been living with her for many years. I was told by my mother years ago that my sister and I were the trustees on her will. For about a year before the cancer hit, it was obvious that most of the decisions my mother made were influenced by my sister. My sister has been dependant on my mother for a very long time. My mother also happened to work for a lawyer. So about three weeks before my mother passed, and during a time when she was taking very heavy doses of pain medication, she and my sister went to the office of the lawyer she worked for. My sister claims it was to assist with a deal my mother had been working on before she stopped working. I did not ask my mother about it as I did not want to upset her. Now that my mother has passed my sister has informed me that my mother had produced the will on her own, and that my sister is the sole trustee on the will and has refused to share a copy of the will with me (this is in Ontario). I know I have some grounds to contest the will. I do not know the probate status. Naturally I am suspicious of that visit to the lawyer, my mother could barely walk at this time. I'm curious If I ask the lawyer about that visit, is he obligated in any way to inform me if he witnessed a change to the will during that visit?

    ReplyDelete
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    1. No, the lawyer is not obligated to tell you anything. In fact, the opposite is true. We lawyers are not allowed to discuss our clients or their actions with anyone without the direct approval of the client. That confidentiality continues to exist even after the client has passed away.

      If you get involved in a lawsuit, the lawyer's involvement will come to light through the legal process.

      If you have a concern about the will, consider filing a caveat at the courthouse against your mother's estate. Otherwise the estate will just carry on as if nobody has a problem with it.

      Lynne

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  8. Hi! after my father passed away i got a copy of his will since i was part of it, but because my family and i not longer talk they have refused to share any information about whats happening with the will, it has being almost a year since he passed and i haven't received a single penny and ill like to know what should i do?

    ReplyDelete
    Replies
    1. It sounds as if the executor is letting his or her personal feelings interfere with the job. Not unusual, but it is a pain in the butt.

      I assume that you've tried the common-sense things like asking the executor directly for the information. Don't bother contacting the estate lawyer because he or she will only direct you to the executor.

      If the executor is refusing to provide you with information and if you are a residuary beneficiary of the will, you might have to hire a lawyer to make a formal request for an accounting of the estate. An accounting basically means a full report on everything the executor has done with the assets and debts, taxes, etc.

      Lynne

      Delete
  9. My mother recently passed...there is myself and my brother...he is the executor...do I have the right for access to read the will?

    Thank you in advance if one can answer :)

    ReplyDelete
    Replies
    1. If you are a beneficiary under the will, then yes you have a right to have a copy of the will.

      Lynne

      Delete
  10. My mom passed away and she left my sister as the executor. She also have given her the authority to managed her bank account as she was not able to do the daily tasks.Now my sister has not closed all her accounts yet and ahopping like crazy with my dead moms bank account. My sister and I are splitting 50/50 on the sale of the home her life insurance. Now my sister just spilled out of the blue that my moms investments are getting "TOD" to her (transfer on death ) my question is as the other daughter do I not have any obligtion to my moms "investments" as well ince everything is split 50/50..shes been extremely secretive with alot of things. I know for a fact i am one of the beneficiary of the will nd as well as my daughter..when do we get to know what our entitlements are? Am i entitled to get a copy of the will??

    ReplyDelete

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